Friday, November 14, 2014

Concurrent v. Coterminous Sentences

The Tenth Circuit published quite the decision this week in Brown v. Parker, a case involving a 42 U.S.C. 1983 action out of Oklahoma.
Mr. Brown (a former lawyer) had some legal problems in Tulsa and Muskogee. He dealt with Tulsa first and got a 2-year sentence. A month later, he wrapped up his legal problems in Muskogee, landing a 2-year sentence this time as well. But he also convinced the Muskogee judge to run his sentence concurrent to the Tulsa sentence. Now, Mr. Brown thought that this meant that the sentences would end at the same time. After all, when one serves two concurrent sentences, the sentences are served at the same time. Of course, Mr. Brown had a problem: the sentences started at different times. What the Tenth Circuit tells us he needed, then, was a coterminous sentence (a sentence that runs, and ends, at the same time as another sentence). If you've never heard of such a thing, you're not alone. (The Tenth Circuit cites Florida case law, and nothing else).Nor would it necessarily be a good idea to ask for such a sentence the next time you are in federal court. The applicable federal statute, 18 U.S.C. 3584, talks about consecutive and concurrent sentences, but not coterminous sentences. But you could ask for a downward adjustment or downward departure under USSG 5G1.3. It appears to be the same thing. In other words, if you have a defendant who is currently serving a state sentence, a federal sentence imposed concurrent to that sentence simply means concurrent as of the date the federal sentence is imposed (and not earlier). To obtain a coterminous sentence (a sentence that ends on the same day as the state sentence), you'll need the judge to adjust the federal sentence downward, as illustrated in 5G1.3.
Back to Mr. Brown. It turns out that the Muskogee sentencing judge actually meant to impose a coterminous sentence, and the judge entered an amended order to that effect. The judge did not use the word coterminous (not even the State's brief on appeal uses the word coterminous.). He simply said: release Mr. Brown when the Tulsa sentence expires. But the department of corrections refused to do so. Hence the lawsuit.
Now, at this point, you might be thinking to yourself that Mr. Brown won the appeal. He needed a coterminous sentence, and that is what he got (eventually). Well, you're wrong. The Court, citing one case from the Alabama Court of Criminal Appeals, held that the sentencing judge lacked jurisdiction under Oklahoma law to impose a coterminous sentence.
That might not be correct. In Setser v. United States, a case ignored by the Court and the parties, the Supreme Court explained that judges have inherent discretion to impose sentences, and it refused to interpret section 3584 to restrict this discretion.
Anyway, the Tenth Circuit actually dropped a footnote suggesting that the sentencing judge could have modified the sentence downward to effectuate a coterminous sentence. Although the Court did not make the connection, this modification procedure is analogous to 5G1.3 in the federal system.
To bring this saga to an end, Mr. Brown ultimately served a little less than one year in prison (thanks to good time credits), not the two years imposed in either case. The concurrent v. coterminous debacle cost him around 90 days of freedom. That is 90 days lost because nobody understood the law at the time of sentencing.
For more on how state and federal sentences interact, go here (page 20).